OUTLINE

This Bill adds the town of
Jabiru and two adjacent portions of Northern Territory land to
Schedule 1 to the Aboriginal Land Rights (Northern Territory)
Act 1976 . This will enable the land to be granted as
Aboriginal land to the Kakadu Aboriginal Land Trust.

The Bill provides that the land
will not be granted as Aboriginal land until leaseback arrangements
for the Jabiru town land and for the two adjacent non-township
portions are put in place.

Certain amendments are made to
the Environment Protection and Biodiversity Conservation Act
1999 . These ensure that the world heritage, natural and
cultural values of Kakadu National Park continue to be protected in
relation to Jabiru, and amend existing management plan and town
plan requirements for development of towns in Commonwealth
reserves.

Lastly, the Bill adds a further
parcel of land for Patta to Schedule 1 to the
Aboriginal Land Rights (Northern Territory) Act
1976 . This will enable the land to be granted as
Aboriginal land to the relevant Aboriginal Land Trust.

FINANCIAL IMPACT
STATEMENT

The
measures in the Bill have nil or negligible financial
impact.

STATEMENT OF COMPATIBILITY WITH
HUMAN RIGHTS

The statement of compatibility
with human rights appears at the end of this explanatory
memorandum.

ABORIGINAL LAND
RIGHTS AND OTHER LEGISLATION AMENDMENT BILL
2013

NOTES ON CLAUSES

Clause 1 - Short
title

Clause 1 sets out how the new Act is to
be cited, that is, as the Aboriginal Land Rights and Other
Legislation Amendment Act 2013.

Clause 2 -
Commencement

Clause 2 provides that the new Act will
commence on the day after Royal Assent.

Clause 3 -
Schedule(s)

Clause 3 provides that each Act that is
specified in a Schedule is amended or repealed as set out in that
Schedule.

Schedule 1
- Amendments relating to Jabiru

Summary

The Jabiru town land and two
adjacent portions of Northern Territory land will be inserted
within Schedule 1 to the Aboriginal Land Rights (Northern
Territory) Act 1976 (the Land Rights Act) to enable the
portions to be granted as Aboriginal land to the Kakadu Aboriginal
Land Trust.

This Bill provides that the land
will not be granted as Aboriginal land until leaseback arrangements
for the Jabiru town land and for the two adjacent non-township
portions are put in place.

Further, the Bill makes
provision for the protection of the world heritage, natural and
cultural values of Kakadu National Park.

Background

The land being added to Schedule
1 by these amendments is located in and around the town of Jabiru
in the Northern Territory. The three portions of Jabiru land
are:

Kakadu National Park is a world
heritage listed reserve, recognised for its natural, cultural and
universal value. The amendments to the
Environment Protection and Biodiversity Conservation Act
1999 (the EPBC Act) are intended to ensure
Kakadu National Park’s cultural, natural and world
heritage value is protected. The Bill also amends certain
development and town planning requirements, which will then apply
to Jabiru.

The status of the Jabiru land as
part of a Commonwealth reserve under the EPBC Act will not be
affected by the grant of the land to the Kakadu Aboriginal
Land Trust.

Explanation of the
changes

Part 1 -
Amendments

Aboriginal Land Rights (Northern
Territory) Act 1976

Items 1 to 3 - Subsection
3(1)

Items 1 to 3 insert definitions
of category A Jabiru land , category B Jabiru
land and category C Jabiru land within
subsection 3(1).

The category A Jabiru land means
land specified in an instrument under new subsection 3AD(1)
discussed below in the explanation of item 10 .

The category B Jabiru land means
land specified in an instrument under new subsection 3AD(2)
discussed below in the explanation of item 10 .

The category C Jabiru land means
land specified in an instrument under new subsection 3AD(3)
discussed below in the explanation of item 10 .

Item 4 - Subsection
3(1)

Item 4 inserts a definition of
Jabiru Town Development Authority within
subsection 3(1). The definition refers to the Jabiru
Town Development Authority established by the Jabiru Town
Development Act (NT).

Item 5 - Subsection
3(1)

Item 5 inserts a definition of
Jabiru town land within subsection 3(1). This
definition is inserted for ease of reference, and has the meaning
given by new section 3AC, as discussed below in the explanation of
item 10 .

Item 6 - Subsection
3(1)

Item 6 inserts a definition of
Kakadu Aboriginal Land Trust within subsection
3(1). The definition refers to the Land Trust of that name
established by the Minister by notice published in the
Gazette under subsection 4(1).

The Governor-General may
(subject to the relevant leaseback arrangements and other
preconditions) deliver a deed of grant of an estate in fee simple
for the land described under the heading ‘JABIRU’ in
Part 4 of Schedule 1 to the Kakadu Aboriginal Land Trust, as
provided below in the explanation of item 17 . The
amendments inserting the land described under the heading
‘JABIRU’ in Part 4 of Schedule 1 are discussed below in
the explanation of item 27 .

Items 7 and 8 - Subsection
3AB(1)

Items 7 and 8 make minor
amendments to subsection 3AB(1) to clarify that a township, in
relation to a Land Trust, is either of the two types of areas of
Aboriginal land specified in subsections 3AB(2) and (3) and
vested in the Land Trust.

Item 9 - At the end of
section 3AB

Item 9 adds two new subsections to
section 3AB of the Land Rights Act.

New subsection 3AB(4) provides
that a ‘township’, in relation to the
Kakadu Aboriginal Land Trust, is the area of Jabiru town
land. This will facilitate any lease of that township
pursuant to section 19A, and obviate the need for a regulation
being made under subsection 3AB(3) in respect of the Jabiru town
land and the Kakadu Aboriginal Land Trust.

New subsection 3AB(5) provides
that new subsection 3AB(4) does not limit the application of
current subsections 3AB(1) to (3) in relation to the
Kakadu Aboriginal Land Trust. This is to ensure that new
subsection 3AB(4) does not prevent other townships being prescribed
by regulation under subsections 3AB(2) or (3) for the purposes
of the Kakadu Aboriginal Land Trust.

Item 10 - After section
3AB

Item 10 inserts new sections 3AC and 3AD
into the Land Rights Act.

New section 3AC provides the
definition of Jabiru town land, as discussed above in the
explanation of item 5 .

New subsection 3AC(1) provides
that, for the purposes of the Land Rights Act, Jabiru town land
means the land specified in a legislative instrument under new
subsection 3AC(2).

New subsection 3AC(2) provides
that the Minister must specify the land for the purposes of new
subsection 3AC(1) by legislative instrument.

New subsection 3AC(3) provides a
consideration the Minister must take into account before making a
legislative instrument under new subsection 3AC(2). The
Minister must have regard to the boundaries of the land comprising
the whole of former Northern Territory Portion 2272 (a former
parcel reference for the town of Jabiru). It is anticipated
that the specification of land under new subsection 3AC(2) will
comprise an area of land with boundaries similar to former Northern
Territory Portion 2272.

New subsection 3AC(4) provides
that the Minister must consult the Northern Territory
Government and the relevant Land Council before making a
legislative instrument under new subsection 3AC(2). The
Minister may also consult such other persons or bodies as the
Minister thinks appropriate (for example,
Energy Resources of Australia Limited and the Director of
National Parks). This new subsection also does not limit
the operation of the Legislative Instruments Act 2003 in
relation to consultation obligations.

New section 3AD will facilitate
any leaseback arrangements for the Jabiru town land made under
section 19 (and explained at items 17 and 21 below) by
requiring the Minister to specify the areas of land within the
Jabiru town land that are to be leased - namely, the category
A Jabiru land, the category B Jabiru land and the category C
Jabiru land. The Minister will do this when negotiations and
survey work are complete.

New subsection 3AD(1) provides
that the Minister must, by legislative instrument, specify an area
within the Jabiru town land for the purposes of the definition of
category A Jabiru land discussed in the explanation of item
1 above. This is the area of land within the Jabiru town
land which is proposed to be subject to a lease variation under
section 19 granted by the Kakadu Aboriginal Land Trust to the
Director of National Parks, as discussed in the explanation of
item 21 below.

New subsection 3AD(2) provides
that the Minister must, by legislative instrument, specify an area
within the Jabiru town land for the purposes of the definition of
category B Jabiru land discussed in the explanation of item
2 above. This is the area of land within the Jabiru town
land which is proposed to be subject to a lease under section 19
granted by the Kakadu Aboriginal Land Trust to the Aboriginal and
Torres Strait Islander corporation nominated in writing by the
relevant Land Council, as discussed in the explanation of item
21 below.

New subsection 3AD(3) provides
that the Minister must, by legislative instrument, specify an area
within the Jabiru town land for the purposes of the definition of
category C Jabiru land discussed in the explanation of item
3 above. This is the area of land within the Jabiru town
land which is proposed to be subject to a lease under section 19
granted by the Kakadu Aboriginal Land Trust to the
Northern Territory, as discussed in the explanation of
item 21 below.

New subsection 3AD(4) requires
that the various instruments made under new section 3AD must
collectively specify the whole of the Jabiru town land. That
is, the category A Jabiru land, the category B Jabiru land and the
category C Jabiru land must cover the whole of the Jabiru town land
that is to be subject to any leaseback arrangements under section
19. Those section 19 leaseback arrangements are
discussed in the explanation of items 17 and 21
below. The alternative leaseback arrangement for the whole of
the Jabiru town land under section 19A is also explained at
items 17 and 23 below.

Item 11 - Subsection
4(1)

Item 11 amends subsection 4(1) of the
Land Rights Act to omit the word ‘Crown’ from that
subsection. This will enable the Minister to establish
Aboriginal Land Trusts to hold land other than Crown land (subject
to the requirements in subsections 10(1) and (2) of the Land Rights
Act).

In the case of Jabiru, the
Director of National Parks, rather than the Commonwealth or
Northern Territory, will continue to hold an estate in fee
simple in the land described under the heading ‘JABIRU’
in Part 4 of Schedule 1 (see the explanation of item 27
below) until immediately before the respective deeds of grant take
effect. The delivery of respective deeds of grant to the
Kakadu Aboriginal Land Trust already established under subsection
4(1) of the Land Rights Act is discussed in the explanation of
item 17 below.

Item 12 - Subsection
4(1A)

Item 12 amends subsection 4(1A) to omit
the words ‘Crown Land’ and substitute the word
‘land’ in that subsection. This will ensure that
the Minister may establish Land Trusts to hold different areas of
land, each of which is included within a single area of land
(rather than just within a single area of ‘Crown land’)
that is described in Schedule 1 to the Land Rights Act.

In the case of Jabiru, the
Director of National Parks, rather than the Commonwealth or
Northern Territory, will continue to hold an estate in fee
simple in the land described under the heading ‘JABIRU’
in Part 4 of Schedule 1 (see the explanation of item 27
below) until immediately before the respective deeds of grant take
effect. The delivery of respective deeds of grant to the
Kakadu Aboriginal Land Trust already established under subsection
4(1) of the Land Rights Act is discussed in the explanation of
item 17 below.

Item 13 - After paragraph
4(2B)(a)

Item 13 inserts a new paragraph
4(2B)(aa) into the Land Rights Act. This paragraph provides a
new circumstance in which the Minister may vary the boundaries of
the land to be held by a Land Trust. The Minister may vary
the boundaries because of a proposed grant of an estate in fee
simple in the land described under the heading ‘JABIRU’
in Part 4 of Schedule 1 (see the explanation of item 27
below) to the Kakadu Aboriginal Land Trust.

This amendment will enable the
Minister to vary the boundaries of the Kakadu Aboriginal Land
Trust in advance of the proposed deeds of grant in relation to
Jabiru.

Item 14 - Section 10
(heading)

Item 14 repeals and substitutes the
heading to section 10 of the Land Rights Act. The effect of
this amendment is to remove the word ‘Crown’ from the
heading with the new heading being ‘Recommendations for
grants of land described in Schedule 1’.

This amendment is necessary
because, in the case of Jabiru, the Director of National Parks,
rather than the Commonwealth or Northern Territory, will
continue to hold an estate in fee simple in the land described
under the heading ‘JABIRU’ in Part 4 of Schedule 1 (see
the explanation of item 27 below) until immediately before
the respective deeds of grant take effect. Further details
that are relevant to this amendment are provided in the explanation
of amendments to subparagraphs 10(1)(a)(i) and (2)(a)(i) at
item 15 below.

Item 15 - Subparagraphs
10(1)(a)(i) and (2)(a)(i)

Item 15 amends subparagraphs 10(1)(a)(i)
and 10(2)(a)(i) to insert the words ‘(other than an area of
land described under the heading ‘JABIRU’ in Part 4 of
Schedule 1)’ after the words ‘Schedule 1’ in
those subparagraphs. The amendments inserting the land
described under the heading ‘JABIRU’ in Part 4 of
Schedule 1 are discussed below in the explanation of item
27 .

The effect of this amendment is
that the land described under the heading ‘JABIRU’ in
Part 4 of Schedule 1 is excluded from land for which the Minister
shall recommend a deed of grant of an estate in fee simple under
these provisions. Instead, the Minister must make a
recommendation to the Governor-General in accordance with new
subsections 10(2AB) and (2AC), as discussed below in the
explanation of item 16 .

Item 16 - After subsection
10(2AA)

Item 16 inserts two new subsections into
section 10 of the Land Rights Act. The two new subsections
provide that the Minister must make recommendations to the
Governor-General for the two proposed deeds of grant discussed
below in the explanation of item 17 upon
commencement.

New subsection 10(2AB) provides
that the Minister must recommend to the Governor-General that a
deed of grant of an estate in fee simple in the land described in
paragraphs (a) and (c) under the heading ‘JABIRU’ in
Part 4 of Schedule 1 (see the explanation of item 27 below)
be made to the Kakadu Aboriginal Land Trust.

New subsection 10(2AC) provides
that the Minister must recommend to the Governor-General that a
deed of grant of an estate in fee simple in the Jabiru town
land (see the explanation of items 5 and 10 above) be made
to the Kakadu Aboriginal Land Trust.

Item 17 - After subsection
12(1)

Item 17 inserts a number of new
subsections within section 12 of the Land Rights Act to
provide for the execution and delivery of the two proposed deeds of
grant by the Governor-General in relation to Jabiru.

New subsection 12(1AA) provides
that the Governor-General, on receipt of a recommendation under new
subsection 10(2AB), as discussed above in the explanation of
item 16 , may execute a deed of grant to the Kakadu
Aboriginal Land Trust.

New subsection 12(1AB) provides
that the Governor-General may then deliver that deed of grant to
the Kakadu Aboriginal Land Trust if the Minister is satisfied about
certain matters. The Minister must be satisfied that a lease
variation under section 19 has been granted by the Kakadu
Aboriginal Land Trust to the Director of National Parks, as
discussed in the explanation of item 21 below. The
Minister must also be satisfied that the variation is expressed to
take effect on the date that the deed of grant is
delivered.

New subsection 12(1AC) provides
that the Governor-General, on receipt of a recommendation under new
subsection 10(2AC), as discussed above in the explanation of
item 16 , may execute a deed of grant to the Kakadu
Aboriginal Land Trust.

New subsection 12(1AD) provides
that the Governor-General may then deliver that deed of grant to
the Kakadu Aboriginal Land Trust if the Minister is satisfied about
certain matters. The Minister must be satisfied that either
the section 19 lease requirements provided under new subsections
12(1AE), (1AF) and (1AG) (the section 19 leaseback arrangements set
out in item 21 ) apply, or the section 19A lease requirement
provided under new subsection 12(1AH) (the section 19A
leaseback arrangement set out in item 23 )
applies.

New subsection 12(1AE) applies
if two preconditions are satisfied. Firstly, a lease
variation under section 19 must be granted by the Kakadu Aboriginal
Land Trust to the Director of National Parks to cover the whole of
the category A Jabiru land (see the explanation of items 1 and
10 above). Secondly, the variation must be expressed to
take effect on the date that the relevant deed of grant is
delivered.

New subsection 12(1AF) applies
if two preconditions are satisfied. Firstly, the Kakadu
Aboriginal Land Trust must enter into a lease under section 19 with
the Aboriginal and Torres Strait Islander corporation
nominated in writing by the relevant Land Council, as discussed in
the explanation of item 21 below. This lease must
cover the whole of the category B Jabiru land (see the
explanation of items 2 and 10 above). Secondly, this
lease must be expressed to take effect on the date that the
relevant deed of grant is delivered.

New subsection 12(1AG) applies
if two preconditions are satisfied. Firstly,
the Kakadu Aboriginal Land Trust must enter into a lease
under section 19 with the Northern Territory covering the whole of
the category C Jabiru land (see the explanation of items 3
and 10 above). Secondly, this lease must be expressed to
take effect on the date that the relevant deed of grant is
delivered.

New subsection 12(1AH) applies
if two preconditions are satisfied. Firstly,
the Kakadu Aboriginal Land Trust must enter into a lease
under section 19A with the Commonwealth covering the whole of the
Jabiru town land (see the explanation of items 5 and 10
above). Secondly, this lease must be expressed to take effect
on the date that the relevant deed of grant is
delivered.

New subsection 12(1AI) provides
that, if a deed of grant is delivered to the Kakadu Aboriginal
Land Trust under new subsections 12(1AB) or (1AD),
subsection 12(2A) applies to the estate in fee simple in the
land held by the Director of National Parks, but does not
otherwise apply. The effect of this provision is that the
estate in fee simple, held by the Director of National Parks in the
land subject to a deed of grant delivered under new
subsections 12(1AB) or (1AD), will cease to exist at the time
the relevant deed of grant takes effect. Any other estates or
interests held by the Director of National Parks in the land (for
example, subleases granted by the Jabiru Town Development
Authority in relation to the Jabiru town land) are excluded from
the operation of subsection 12(2A).

Item 18 - After subsection
12(2A)

Item 18 inserts a further new subsection
within section 12. New subsection 12(2AB) provides
that, if a deed of grant is delivered to the Kakadu Aboriginal
Land Trust under subsection 12(1AD) in relation to the Jabiru town
land, then, at the time the deed of grant takes effect, the lease
of that land by the Director of National Parks to the Jabiru Town
Development Authority ceases to exist.

Item 19 - After subsection
12A(1)

Item 19 inserts a new subsection within
section 12A of the Land Rights Act. New subsection 12A(1A)
provides that subsection 12A(1) does not apply to an estate or
interest of the Director of National Parks in land described under
the heading ‘JABIRU’ in Part 4 of Schedule 1 (see the
explanation of item 27 below). The effect of new
subsection 12A(1A) is that section 12A will not entitle the
Director of National Parks to continue his or her occupation of the
land for the purposes of the EPBC Act in relation to the current
estate in fee simple once it ceases (see the explanation of new
subsection 12(1AI) in relation to item 17
above).

However, section 12A(1) will
otherwise apply (where relevant) to provide that the Director of
National Parks is entitled to continue his or her occupation of the
land for the purposes of the EPBC Act in relation to any other
estates or interests held in relation to the land (for example, in
relation to subleases granted by the Jabiru Town Development
Authority in relation to the Jabiru town land).

Item 20 - Subsection
19(1)

Item 20 repeals subsection 19(1) of the
Land Rights Act and substitutes a new subsection 19(1). New
subsection 19(1) provides that a Land Trust must not deal with or
dispose of, or agree to deal with or dispose of, certain estates,
interests or land except as provided by section 19, 19A or
20.

New paragraph 19(1)(a) provides
that a Land Trust must not deal with or dispose of, or agree to
deal with or dispose of, any estate or interest in land vested in
it except as provided by section 19, 19A or 20.

To avoid any doubt, new
paragraph 19(1)(b) clarifies that a Land Trust must not deal with
or dispose of, or agree to deal with or dispose of, the land
described under the heading ‘JABIRU’ in Part 4 of
Schedule 1 (see the explanation of item 27 below) except as
provided by section 19, 19A or 20.

The effect of new paragraph
19(1)(b) is that it will be possible for a Land Trust to deal with
that land before it is vested in that Land Trust. This will
enable the Kakadu Aboriginal Land Trust to grant the lease
variations and enter into the leases, as discussed in the
explanation of item 21 below, if the section 19 leasing
model is adopted in relation to Jabiru. In the alternative,
this new paragraph will also enable the Kakadu Aboriginal Land
Trust to grant the lease, as discussed in the explanation of
item 23 below, if the section 19A leasing model is adopted
in relation to Jabiru.

Item 21 - After subsection
19(3C)

Item 21 inserts a number of new
subsections within section 19 of the Land Rights Act to
provide for the leaseback arrangements to be granted and entered
into by the Kakadu Aboriginal Land Trust if the section 19 leasing
model is adopted in relation to Jabiru.

New subsection 19(3D) provides
for a lease variation under section 19 to be granted by the Kakadu
Aboriginal Land Trust to the Director of National Parks to cover
the land described in paragraphs (a) and (c) under the heading
‘JABIRU’ in Part 4 of Schedule 1 (see the explanation
of item 27 below). The variation may be granted
despite the relevant deed of grant not having been delivered (see
the explanation of items 16 and 17 above).
The variation must be expressed to take effect on the date
that such a deed of grant is delivered.

New subsection 19(3E) provides
for a lease variation under section 19 to be granted by the Kakadu
Aboriginal Land Trust to the Director of National Parks to cover
the category A Jabiru land (see the explanation of items 1 and
10 above). The variation may be granted despite the
relevant deed of grant not having been delivered (see the
explanation of items 16 and 17 above).
The variation must be expressed to take effect on the date
that such a deed of grant is delivered.

New subsection 19(3F) provides
that, with the consent of the Minister and at the direction of the
relevant Land Council, the Kakadu Aboriginal Land Trust may grant a
lease to the Aboriginal and Torres Strait Islander corporation,
nominated in writing by the relevant Land Council, of the category
B Jabiru land (see the explanation of items 2 and 10
above).

New subsection 19(3G) provides
that the Kakadu Aboriginal Land Trust may grant a lease mentioned
in new subsection 19(3F) despite the relevant deed of grant not
having been delivered (see the explanation of items 16 and
17 above). The lease must be expressed to take effect on
the date that such a deed of grant is delivered.

New subsection 19(3H) provides
that, with the consent of the Minister and at the direction of the
relevant Land Council, the Kakadu Aboriginal Land Trust may grant a
lease to the Northern Territory of the category C Jabiru land
(see the explanation of items 3 and 10
above).

New subsection 19(3J) provides
that the Kakadu Aboriginal Land Trust may grant a lease mentioned
in new subsection 19(3H) despite the relevant deed of grant not
having been delivered (see the explanation of items 16 and
17 above). The lease must be expressed to take effect on
the date that such a deed of grant is delivered.

New subsection 19(3K) provides
that the Minister must not give consent to a lease under new
subsections 19(3F) or (3H) unless two preconditions are
satisfied. Firstly, the term of the lease must be 99
years. Secondly, the Minister administering the
EPBC Act must be satisfied that the terms and conditions of
the lease are consistent with the protection of the world heritage
values, and other natural and cultural values, of Kakadu National
Park.

New subsection 19(3L) provides
for the treatment of certain categories of rights, titles or
interests, or any thing, if a lease is varied under new subsection
19(3E) or granted under new subsections 19(3F) or (3H).
The expression ‘applicable land’ is defined for
the purposes of new subsection 19(3L) in new subsection
19(3M).

The purpose of new subsection
19(3L) is not just to preserve certain existing rights, titles or
interests in relation to the applicable Jabiru town land.
The new subsection is also drafted to give effect to such
rights, titles or interests with full force and effect, even if
they are currently limited or invalid (and are therefore just
purported rights, titles or interests) (see the explanation in
relation to new subsection 19(3Q) below).

New paragraph 19(3L)(a)
provides, subject to two exceptions, that any right, title or
interest, or any thing, that was registered under the Land Title
Act (NT) in relation to the applicable land immediately before
the time the variation or new lease takes effect has full force and
effect in accordance with its terms at and after that time.
The two exceptions to the general rule in new
paragraph 19(3L)(a) are the estate in fee simple in the
applicable land held by the Director of National Parks and any
right, title or interest, or any thing, held by the Jabiru Town
Development Authority in relation to the applicable
land.

Under new paragraph 19(3L)(a),
for example, all registered subleases granted by the Jabiru Town
Development Authority in relation to the Jabiru town land will have
full force and effect at and after the time the variation or new
lease takes effect. In addition, the term ‘any right,
title or interest, or any thing, that was registered’
includes any purported right, title or interest, or any thing,
which was registered (see the explanation in relation to new
subsection 19(3Q) below).

New paragraph 19(3L)(b) provides
that certain further categories of rights, titles or interests in
relation to the applicable land that existed immediately before the
time the variation or new lease takes effect has full force and
effect in accordance with its terms at and after that
time.

The first additional category to
which new paragraph 19(3L)(b) applies (subparagraph 19(3L)(b)(i))
is to any right, title or interest in relation to the applicable
land that was granted under any right, title or interest, or any
thing, covered by new paragraph 19(3L)(a). For example, any
interest granted under a registered sublease in relation to the
Jabiru town land will have full force and effect at and after the
time the variation or new lease takes effect under this new
subparagraph.

The second additional category
to which new paragraph 19(3L)(b) applies (subparagraph
19(3L)(b)(ii)) is to any right, title or interest in relation to
the applicable land that was granted under any right, title or
interest, or any thing, held by the Jabiru Town Development
Authority in relation to the applicable land. For example,
any unregistered interests granted by the Jabiru Town Development
Authority in relation to the Jabiru town land will have full force
and effect at and after the time the variation or new lease takes
effect.

New paragraph 19(3L)(c) applies
to any right, title or interest in relation to a facility (within
the meaning of the Telecommunications Act 1997 ) that is on,
over or under the applicable land and is owned or operated by a
carrier (within the meaning of that Act). In this
circumstance, if the right, title or interest existed immediately
before the variation or new lease takes effect, it has full force
and effect in accordance with its terms at and after that
time. This paragraph is intended to ensure that certain
interests identified by Telstra Corporation Limited, and any
other relevant interests owned or operated by any other carrier in
Jabiru, have full force and effect at and after the time the
variation or new lease takes effect.

New paragraph 19(3L)(d) applies
to any right, title or interest in relation to the trust assets (as
defined under new subsection 19(3N)) that existed immediately
before the time the variation or new lease takes effect. In
this circumstance, the right, title or interest has full force and
effect in accordance with its terms at and after that time.
This paragraph is intended to ensure that the legal and beneficial
interests held by the Jabiru Town Development Authority, the
Commonwealth, the Northern Territory and Energy Resources of
Australia Limited under the Jabiru Cost Sharing Agreement have full
force and effect at and after the time the variation or new lease
takes effect.

New paragraph 19(3L)(e) provides
that any right, title or interest, or any thing, in relation to the
applicable land, specified in a legislative instrument made by the
Minister under this paragraph, has full force and effect in
accordance with its terms at and after the time the variation or
new lease takes effect.

The Commonwealth is not aware of
any further rights, titles, interests or things that should be
specifically given effect at and after the time the variation or
new lease takes effect and would not be captured by new
paragraphs 19(3L)(a) to (d). However, if any such right,
title, interest or thing is identified, this power would enable it
to have full force and effect in accordance with its
terms.

New subsection 19(3M) provides a
definition of the phrase ‘applicable land’ for the
purposes of new subsection 19(3L). For a lease variation
under new subsection 19(3E), the applicable land is the
category A Jabiru land. For a lease under new subsection
19(3F), the applicable land is the category B Jabiru land.
For a lease under new subsection 19(3H), the applicable land is the
category C Jabiru land.

New subsection 19(3N) provides a
definition of the phrase ‘trust assets’ for the
purposes of new paragraph 19(3L)(d). ‘Trust
assets’ means Trust Assets within the meaning of subclause
1(1) of the Jabiru Cost Sharing Agreement between the
Jabiru Town Development Authority and Energy Resources of
Australia Limited made on 23 August 1985.

New subsection 19(3P) provides
that new paragraphs 19(3L)(a) to (d) do not limit the scope of the
instrument-making power provided under new
paragraph 19(3L)(e).

New subsection 19(3Q) provides
that any right, title or interest, or any thing, to which new
subsection 19(3L) applies has full force and effect at and after
the time the variation or new lease takes effect. To avoid
doubt, this provision explicitly confirms that this will be the
case even if the right, title, interest or thing did not have full
force and effect immediately before that time.

New subsection 19(3R) provides
further requirements that apply if new subsection 19(3L) applies in
relation to a right, title, interest or thing granted by the Jabiru
Town Development Authority. If this is the case, then, at and
after the variation or new lease takes effect, the right, title,
interest or thing has full force and effect as if it were granted
by the Director of National Parks (for a lease varied under new
subsection 19(3E)), the nominated Aboriginal and Torres Strait
Islander corporation (for a lease under new subsection 19(3F))
or by the Northern Territory (for a lease under new subsection
19(3H)). This provision does not mean, for instance, that any
sublease granted by the Jabiru Town Development Authority in
relation to the Jabiru town land operates as if it is granted
afresh by the relevant new lessor at the time the deed of grant
takes effect. Rather, it is just the balance of the term that
operates with the new lessor.

New subsection 19(3S) applies if
new subsection 19(3L) applies and, immediately before the variation
or lease takes effect, the right, title, interest or thing is
contingent on the existence of the lease of the Jabiru town land by
the Director of National Parks to the Jabiru Town Development
Authority. This new subsection provides that, at the time the
variation or lease takes effect, the terms of the right, title,
interest or thing are taken to have been modified so that it is
contingent on the existence of the varied lease or new
lease.

New subsection 19(3T) provides
that, before making a legislative instrument under paragraph
19(3L)(e), the Minister must consult the relevant
Land Council. The Minister may also consult other
persons or bodies (for example, the Northern Territory
Government and the Director of National Parks) and this new
subsection also does not limit the operation of the
Legislative Instruments Act 2003 in relation to
consultation obligations.

New subsection 19(3U) provides
that, if the Minister makes a legislative instrument under new
paragraph 19(3L)(e), he or she must give a copy to the relevant
Land Council.

Item 22 - Subsections
19(8A) and (8B)

Item 22 amends subsections 19(8A) and
(8B) of the Land Rights Act. References to new subsections
19(3F) and (3H) are inserted into subsections 19(8A) and
(8B). This will ensure that certain provisions in section 19
of the Land Rights Act in relation to the transfer or grant of
certain interests by the relevant grantee will apply to the leases
granted by the Kakadu Aboriginal Land Trust to the nominated
Aboriginal and Torres Strait Islander corporation and the
Northern Territory.

Item 23 - After subsection
19A(1A)

Item 23 inserts new subsections 19A(1B)
and (1C) into the Land Rights Act.

New subsection 19A(1B) provides
that the Kakadu Aboriginal Land Trust may grant a lease of the
Jabiru town land to the Commonwealth before the delivery of the
relevant deed of grant to that Land Trust (if the Minister consents
to the granting of the lease as provided by current
subsection 19A(1)).

New subsection 19A(1C) provides
that the Minister must not give a consent under current subsection
19A(1) in relation to the grant of a lease mentioned in new
subsection 19A(1B) unless the term of the lease is 99 years and the
Minister administering the EPBC Act is satisfied with the terms and
conditions of the lease (in order to protect the world heritage,
natural and cultural values of Kakadu National Park).

Item 24 - After subsection
19A(11)

Item 24 amends section 19A of the Land
Rights Act by inserting a number of new subsections (subsections
19A(11A) to (11J)).

New subsection 19A(11A) provides
that the general rule for preserving any existing right, title or
other interest in land the subject of a lease granted under section
19A (in subsections 19A(10) and (11)) does not apply to a lease
mentioned in new subsection 19A(1B). This means that the
general preservation rule does not apply to a lease of the Jabiru
town land granted by the Kakadu Aboriginal Land Trust to the
Commonwealth if the section 19A leasing model is adopted in
relation to Jabiru.

New subsection 19A(11B) provides
for the treatment of certain categories of rights, titles or
interests, or any thing, if a lease is granted under new subsection
19A(1B).

The purpose of new subsection
19A(11B) is not just to preserve certain existing rights, titles or
interests in relation to the applicable Jabiru town land. The
new subsection is also drafted to give effect to such rights,
titles or interests with full force and effect, even if they are
currently limited or invalid (and are therefore just purported
rights, titles or interests) (see the explanation in relation to
new subsection 19A(11E) below).

New paragraph 19A(11B)(a)
provides, subject to two exceptions, that any right, title or
interest, or any thing, that was registered under the Land Title
Act (NT) in relation to the relevant land immediately
before the time the lease takes effect has full force and effect in
accordance with its terms at and after that time. The two
exceptions to the general rule in new paragraph 19A(11B)(a)
are the estate in fee simple in the relevant land held by the
Director of National Parks and any right, title or interest, or any
thing, held by the Jabiru Town Development Authority in relation to
the relevant land.

Under new paragraph 19A(11B)(a),
for example, all registered subleases granted by the Jabiru Town
Development Authority in relation to the Jabiru town land will have
full force and effect at and after the time the lease takes
effect. In addition, the term ‘any right, title or
interest, or any thing, that was registered’ includes any
purported right, title or interest, or any thing which was
registered (see the explanation in relation to new subsection
19A(11E) below).

New paragraph 19A(11B)(b)
provides that certain further categories of rights, titles or
interests in relation to the relevant land that existed immediately
before the time the lease takes effect have full force and effect
in accordance with its terms at and after that time.

The first additional category to
which new paragraph 19A(11B)(b) applies (subparagraph
19A(11B)(b)(i)) is to any right, title or interest in relation to
the relevant land that was granted under any right, title or
interest, or any thing, covered by new paragraph 19A(11B)(a).
For example, any interest granted under a registered sublease in
relation to the Jabiru town land will have full force and effect at
and after the time the lease takes effect under this new
subparagraph.

The second additional category
to which new paragraph 19A(11B)(b) applies (subparagraph
19A(11B)(b)(ii)) is to any right, title or interest in relation to
the relevant land that was granted under any right, title or
interest, or any thing, held by the Jabiru Town Development
Authority in relation to the relevant land. For example, any
unregistered interests granted by the Jabiru Town Development
Authority in relation to the Jabiru town land will have full force
and effect at and after the time the lease takes effect.

New paragraph 19A(11B)(c)
applies to any right, title or interest in relation to a facility
(within the meaning of the Telecommunications Act 1997 ) that
is on, over or under the relevant land and is owned or operated by
a carrier (within the meaning of that Act). In this
circumstance, if the right, title or interest existed immediately
before the lease takes effect, it has full force and effect in
accordance with its terms at and after that time. This
paragraph is intended to ensure that certain interests identified
by Telstra Corporation Limited, and any other relevant interests
owned or operated by any other carrier in Jabiru, have full force
and effect at and after the time the lease takes effect.

New paragraph 19A(11B)(d)
applies to any right, title or interest in relation to the trust
assets (as defined under new subsection 19A(11C)) that existed
immediately before the time the lease takes effect. In this
circumstance, the right, title or interest has full force and
effect in accordance with its terms at and after that time.
This paragraph is intended to ensure that the legal and beneficial
interests held by the Jabiru Town Development Authority,
the Commonwealth, the Northern Territory and Energy Resources
of Australia Limited under the Jabiru Cost Sharing Agreement have
full force and effect at and after the time the lease takes
effect.

New paragraph 19A(11B)(e)
provides that any right, title or interest, or any thing, in
relation to the relevant land, specified in a legislative
instrument made by the Minister under this paragraph, has full
force and effect in accordance with its terms at and after the time
the lease takes effect. The Commonwealth is not aware of
any further rights, titles, interests or things that should be
given effect at and after the time the lease takes effect and would
not be captured by new paragraphs 19A(11B)(a) to (d).
However, if any such right, title, interest or thing is
identified, this power would enable it to have full force and
effect in accordance with its terms.

New subsection 19A(11C) provides
a definition for the phrase ‘trust assets’ for the
purposes of new paragraph 19A(11B)(d). ‘Trust
assets’ means Trust Assets within the meaning of
subclause 1(1) of the Jabiru Cost Sharing Agreement between the
Jabiru Town Development Authority and Energy Resources of
Australia Limited made on 23 August 1985.

New subsection 19A(11D) provides
that new paragraphs 19A(11B)(a) to (d) do not limit the scope of
the instrument-making power provided under new
paragraph 19A(11B)(e).

New subsection 19A(11E) provides
that any right, title or interest, or thing, to which new
subsection 19A(11B) applies has full force and effect at and after
the time the lease takes effect. To avoid doubt, this
provision explicitly confirms that this will be the case even if
the right, title, interest or thing did not have full force and
effect immediately before that time.

New subsection 19A(11F) provides
that, if a lease mentioned in new subsection 19A(1B) is
granted and new subsection 19A(11B) applies in relation to a right,
title, interest or thing granted by the Jabiru Town Development
Authority, the right, title, interest or thing has full force and
effect in accordance with its terms as if it were granted by the
Commonwealth. This provision does not mean, for instance,
that any sublease granted by the Jabiru Town Development Authority
in relation to the Jabiru town land operates as if it is granted
afresh by the Commonwealth at the time the deed of grant takes
effect. Rather, it is just the balance of the term that
operates with the Commonwealth as lessor.

New subsection 19A(11G) applies
if new subsection 19(11B) applies and, immediately before the lease
takes effect, the right, title, interest or thing is contingent on
the existence of the lease of the Jabiru town land by the Director
of National Parks to the Jabiru Town Development Authority.
New subsection 19A(11G) provides that, from the time the
subsection 19A(1B) lease takes effect, the terms of the right,
title, interest or thing are taken to have been modified so that it
is contingent on the existence of the lease.

New subsection 19A(11H) provides
that, before making a legislative instrument under paragraph
19A(11B)(e), the Minister must consult the relevant Land
Council. The Minister may also consult other persons or
bodies (for example, the Northern Territory Government and the
Director of National Parks), and this new subsection also does not
limit the operation of the Legislative Instruments Act 2003
in relation to consultation obligations.

New subsection 19A(11J) provides
that, if the Minister makes a legislative instrument under new
paragraph 19A(11B)(e), he or she must give a copy to the relevant
Land Council.

Item 25 - Paragraph
19A(12)(a)

Item 25 amends paragraph 19A(12)(a) of
the Land Rights Act by adding ‘or (11F)’ after
‘subsection (11)’. The effect of this amendment,
and the amendments provided by item 26 below, is that, if new
subsection 19A(11F) applies in relation to a right, title,
interest or thing and paragraphs 19A(12)(b) and (c) are also
satisfied, then, at that time, the right, title, interest or thing
has effect as if it were granted by the transferee on the same
terms and conditions as existed immediately before that
time.

Item 26 - Subsection
19A(12)

Item 26 amends subsection 19A(12) to
omit the words ‘or other interest’ (wherever occurring)
and substitute the words ‘, interest or thing’.
This is a technical consequential amendment to align with new
subsection 19A(11F).

Item 27 - Part 4 of
Schedule 1 (after the item relating to INNESVALE)

Item 27 inserts the Jabiru town land and
two adjacent non-township portions (Northern Territory Portions
2271 and 2273) into Part 4 of Schedule 1 to the Land Rights Act
(after the item relating to INNESVALE).

Environment Protection and
Biodiversity Conservation Act 1999

Item 28 - After subsection
345A(2)

Item 28 inserts subsection 345A(2A) to
provide an exception to the operation of subsection 345A(2), which
provides that, if the Commonwealth acquires a usage right relating
to land or seabed in a Commonwealth reserve, the usage right
automatically vests in the Director of National Parks.

The exception will apply to a
usage right acquired by the Commonwealth that is a lease of the
Jabiru town land to the Commonwealth under section 19A of the
Land Rights Act, as discussed above in the explanation of item
23 . The amendments providing for the
description of the Jabiru town land are discussed above in the
explanation of items 5, 10 and 27 .

The exception will further apply
to any usage rights prescribed by the regulations to address other
possible cases where the Commonwealth could acquire a usage right
in a Commonwealth reserve.

Item 29 - Subsection
388(1)

Item 29 inserts further words into
subsection 388(1) to provide that a person may use as well as
develop a township in a part of a Commonwealth reserve in certain
circumstances.

Item 30 - Subparagraph
388(1)(b)(i)

Item 30 is a technical amendment to omit
a subsection reference in subparagraph 388(1)(b)(i) to subsection
388(3), which is required as a consequence of item
31 .

Item 31 - Subsections
388(2), (3) and (4)

Item 31 repeals subsections 388(2), (3)
and (4) and replaces them with a new subsection 388(2).

The new subsection provides that
a person (other than the Director of National Parks) may use or
develop a township only on land the person holds under lease or
sublease from the Commonwealth, the Director of National Parks, the
Kakadu Aboriginal Land Trust, the Northern Territory or the
nominated Aboriginal and Torres Strait Islander corporation
referred to in new subsection 19(3F) of the Land Rights Act,
as discussed above in the explanation of item 21.

Item 32 -
Subsections 389(1) and (2)

Item 32 repeals subsections 389(1) and
(2) and substitutes two new subsections because the present wording
of section 389 is out of date and does not reflect current
circumstances.

New subsection 389(1) provides
that the provisions of a management plan for a Commonwealth reserve
that relate to a township must include provisions for and in
relation to the use and development of the township, as provided by
the amendments to subsection 388(1), discussed above at item
29 .

New subsection 389(2) provides
that a town plan must make detailed provision in relation to the
use and development of the township, as provided by the amendments
to subsection 388(1), discussed above at item 29 .
In particular, the town plan must include detailed provision
in relation to any matters specified by the management plan for the
relevant Commonwealth reserve or the regulations.

Item 33 - Paragraph
389(3)(a)

Item 33 amends paragraph 389(3)(a) to
omit the words ‘that would not otherwise apply in relation to
the township’.

Item 34 - Subsection
389(4)

Item 34 repeals subsection 389(4), which
relates to town plans not being inconsistent with other
instruments, because this subsection is unnecessary.

Item 35 - Saving -
management plans and town plans

Item 35 is a savings provision to ensure
that the amendments discussed above at item 32 do not affect
the validity of a management plan, or a town plan, in force
immediately before the commencement of that item.

Part 2 - Compensation for
acquisition of property

Item 36 - Compensation for
acquisition of property

Item 36 provides that compensation is
payable when there is an acquisition of property, due to the
operation of Schedule 1 to the Bill or an act done under a
provision of the Land Rights Act inserted by that Schedule, as
provided in paragraph 51(xxxi) of the Australian
Constitution.

Subitem 36(1) provides that, if
there is an acquisition of property to which paragraph 51(xxxi) of
the Constitution applies, and the acquisition was otherwise than on
just terms, the Commonwealth is liable to pay a reasonable amount
of compensation to the person whose property was
acquired.

Subitem 36(2) provides that, where
an amount of compensation is not agreed upon by the Commonwealth
and the person whose property has been acquired, that person may
institute proceedings in a court of competent jurisdiction for the
recovery of a reasonable amount of compensation, as that court
determines.

Subitem 36(3) provides that
acquisition of property and just terms
have the same meaning as provided for in paragraph 51(xxxi) of the
Constitution.

Schedule 2
- Other amendments

Summary

This Schedule adds a further
parcel of land to Schedule 1 to the Aboriginal Land Rights
(Northern Territory) Act 1976 (the Land Rights Act).

Background

This Schedule adds a further
parcel of Northern Territory land to Schedule 1 to the
Land Rights Act. This will allow the land in
question to be granted to the relevant Aboriginal Land Trust under
sections 10 and 12 of the Land Rights Act.

The Families, Housing,
Community Services and Indigenous Affairs and Other Legislation
Amendment (2009 Measures) Act 2010 inserted five portions of
land, known as Patta in the Northern Territory, into Part 4 of
Schedule 1 to the Land Rights Act. This Schedule adds an
additional portion of land, Northern Territory Portion 7021, to the
description of Patta in Schedule 1 to the Land Rights
Act.

Northern Territory Portion 7021
is currently subject to Perpetual Pastoral Lease 1142. The
holders of this lease have indicated their willingness to surrender
Northern Territory Portion 7021 to make it available to be granted
as Aboriginal land. The Northern Territory Government and the
Central Land Council are supportive of the additional
scheduling.

Explanation of
the changes

Item 1 - Part 4 of
Schedule 1 (at the end of the item relating to
PATTA)

Item 1 amends Part 4 of Schedule 1 to
the Land Rights Act by inserting a reference to an additional
portion of land (Northern Territory Portion 7021 delineated on
Survey Plan S2009/1A) near Tennant Creek in the
Northern Territory known as Patta as land to be granted as
Aboriginal land.

Statement of
Compatibility with Human Rights

Prepared in
accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011

Aboriginal Land
Rights and Other Legislation Amendment Bill 2013

This Bill is compatible with the
human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act
2011 .

Overview of the
Bill

This Bill adds the Jabiru town
land and certain adjacent portions of Northern Territory land
to Schedule 1 to the Aboriginal Land Rights
(Northern Territory) Act 1976 to enable the land to be
granted as Aboriginal land to the Kakadu Aboriginal Land
Trust.

This Bill also provides that the
land will not be granted as Aboriginal land until leaseback
arrangements for the Jabiru town land and for the two adjacent
non-township portions are put in place.

This Bill makes related
amendments to the Environment Protection and Biodiversity
Conservation Act 1999 to ensure that the world heritage,
natural and cultural values of Kakadu National Park are preserved,
and amends certain management plan and town planning requirements
in relation to Commonwealth reserves.

These amendments arise from an
agreement to resolve the Jabiru native title claim. The
intention of this measure is to give effect to the settlement
agreement reached between the parties to the native title
claim. This Bill recognises the traditional ownership of
Jabiru of the Mirarr people. It ensures that the land will
remain within Kakadu National Park, and that its World Heritage
listing status is not disrupted.

This Bill also adds a further
parcel of land for Patta to Schedule 1 to the
Aboriginal Land Rights (Northern Territory) Act 1976 to
enable the land to be granted to the relevant Aboriginal Land
Trust. The Families, Housing, Community Services and
Indigenous Affairs and Other Legislation Amendment (2009 Measures)
Act 2010 previously inserted five portions of land, known as
Patta in the Northern Territory, into Schedule 1 to the
Aboriginal Land Rights (Northern Territory) Act
1976 .

Human rights
implications

The long title of the
Aboriginal Land Rights (Northern Territory) Act 1976 is
‘An Act providing for the granting of Traditional Aboriginal
Land in the Northern Territory for the benefit of Aboriginals, and
for other purposes’.

The Aboriginal Land Rights
(Northern Territory) Act 1976 is discriminatory in nature as it
confers rights and privileges upon Aboriginal Australians, which
are discriminatory as against non-Aboriginal Australians.
That discrimination is the essence of the Act; it is the
foundation on which it is structured. However, the beneficial
nature of this discrimination enables the Aboriginal Land Rights
(Northern Territory) Act 1976 and this Bill to be each
classified as a ‘special measure’ within the meaning of
paragraph 4 of article 1 of the International Convention on the
Elimination of All Forms of Racial Discrimination (the CERD)
(and subsection 8(1) of the Racial Discrimination
Act 1975 ).

The CERD provides that special
measures are deemed not to be discrimination. Special
measures are designed to ‘secure to disadvantaged groups the
full and equal enjoyment of human rights and fundamental
freedoms’. [1]

This Bill advances and engages
the following rights:

· the right to self-determination
(recognised in article 1 of the International Covenant on
Civil and Political Rights (ICCPR));

· rights to equality
and non-discrimination (recognised in article 2 of the CERD, and
article 26 of the ICCPR) ; and

· the
rig h t to enjoy a n d benefit from culture
(recognised in article 27 of the ICCPR) .

This Bill is necessary to
recognise and ensure that relevant Aboriginal people have the right
to own and control their traditional Aboriginal lands.
The limitation on the rights of non-Aboriginal Australians is
reasonable, necessary and proportionate to the policy desire to
promote the equal enjoyment of the engaged rights by
Aboriginal Australians.

Minister for Sustainability,
Environment, Water, Population and Communities,
the Hon Tony Burke MP

[1]
Committee on the Elimination of Racial
Discrimination, General
Recommendation No. 32: The Meaning and Scope of
Special Measures in the International Convention on the Elimination
of Racial Discrimination
(August 2009), at paragraph [11].